Special Prosecutor Jack Smith is moving steadily ahead to put Donald Trump on trial March 4, 2024 in a DC courtroom. The coming trial, before federal district Judge Tanya Chutkan, will address Mr. Trump’s use of election falsehoods to stop, delay or change Congress’ count of the 2020 electoral vote on January 6, 2021. To clear the way, Smith just filed a 64-page fact laden brief responding to Mr. Trump’s motions to dismiss the indictment. Smith’s responses are a window into the serious legal peril facing Mr. Trump.
Already Republicans face the prospect their leading candidate becomes a convicted felon just as they approach the mid-July 2024 Republican National Convention. Republicans may want to consider Smith’s responses to the Trump lawyers now before the election calendar takes them further down the road with Mr. Trump.
Jack Smith’s responses to the Trump defenses reveal the seriousness of the charges. Mr. Trump’s attorneys argue of claims the election was rigged or stolen: “whatever one thinks of President Trump’s expressed opinions on this issue, his assertion of them does not constitute ‘deceit’ or ‘trickery’” under federal law. Smith responds Mr. Trump did more than express opinions. He used “facts” his lawyers’ briefs do not attempt to defend as true. For example, Trump statements that “36,000 non-citizens had voted in Arizona”; that “more than 10,300 dead people had voted in Georgia”; that “there had been 205,000 more votes than voters in Pennsylvania”; or that “voting machines in various contested states had switched votes from defendant to Biden”---none of it accepted as true by the FBI that had investigated the claims or by the 60 courts that had reviewed them by mid-December 2020. Yet Mr. Trump continued to repeat them in attempts to obstruct Congress’ electoral count January 6.
The Trump lawyers also attempt to argue the officials to whom the false claims were directed “had every opportunity to form his or her own conclusions, just like President Trump” and would not be fooled. Smith counters a criminal conspiracy can exist “regardless of whether the ‘object of the conspiracy can be achieved….’” “Were it otherwise,” Smith writes, “defendants captured en route to a bank robbery could not be charged with conspiracy because their crime did not succeed.” In any case, “as a sitting president” Mr. Trump’s words mattered most Smith writes because “he had the benefit of the full resources of the federal government, including the top federal law enforcement officials at the Department of Justice, the Director of National Intelligence, all of whom were informing him that his claims of outcome determinative fraud were false — and as a result of his role and access to this information his voice carried more weight.”
Trump lawyers also contend that Mr. Trump’s false statements about the scope of the Vice President’s legal authority were merely “a misrepresentation of law," not fraud. Again, it’s more than that. Misrepresentations of law to promote unlawful acts are actionable. Smith shows Mr. Trump used “repeated knowingly false claims of election fraud and directly pressured the Vice President to use his ceremonial role at the certification proceedings on January 6 to fraudulently overturn the results of the election.”
The Trump lawyers’ constitutional claims against the indictment are equally unavailing. The Trump lawyers argue: “the First Amendment does not permit the government to prosecute a citizen for claiming the 2020 presidential election was stolen.” Of course, it doesn’t. However, Jack Smith shows Mr. Trump “…did not stop there. He instead made dozens of ‘specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident citizens, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes from the Defendant to votes for Biden.’” Mr. Trump weaponized lies as “instruments” to fraudulently obstruct and try to overturn the election.
Indeed, Smith explains speech used to carry out crimes is not protected at all by the First Amendment. He writes: “were it otherwise, the prosecution would be unable to prove that a defendant in a robbery case told the victim to ‘give me all your money’ or that a drug trafficker told his buyer what the price would be. That is clearly not the law. …the First Amendment does not shield fraud.”
Finally, Trump attorneys argue that the Senate’s refusal to convict Mr. Trump of incitement for the January 6 riot confers protection of the Double-Jeopardy Clause of the Constitution. Mr. Smith responds the Double-Jeopardy Clause only “guards against ‘imposition of multiple criminal punishments for the same offense.’” The penalty for impeachment is not criminal, just removal and disqualification. Further, the same offense is not involved because the charge of incitement to violence considered by the Senate is not charged in the indictment. The indictment charges deceit toward obstruction and attempted deprivation of voting rights.
Jack Smith remains on track to secure a felony conviction before the Republican Convention in mid-July. Already Smith’s recent brief portends for Mr. Trump a grave result.
Robert P. Wise is a Northsider.
